Abstract

http://ssrn.com/abstract=2132132
 


 



Affirmative Sexual Consent in Canadian Law, Jurisprudence, and Legal Theory


Lucinda Vandervort


University of Saskatchewan

April 1, 2012

Columbia Journal of Gender and Law, Vol. 23, No. 2, pp. 395-442, 2012

Abstract:     
This is the penultimate draft of an article, now available in published form, that examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of non-discretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions.

Available on Heinonline

Number of Pages in PDF File: 34

Keywords: sexual consent, affirmative consent, voluntary agreement, Canada, equality rights, sexual self-determination, sexual autonomy, jurisprudence, criminal law, law reform, legal theory

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Date posted: August 20, 2012 ; Last revised: November 13, 2013

Suggested Citation

Vandervort , Lucinda, Affirmative Sexual Consent in Canadian Law, Jurisprudence, and Legal Theory (April 1, 2012). Columbia Journal of Gender and Law, Vol. 23, No. 2, pp. 395-442, 2012. Available at SSRN: http://ssrn.com/abstract=2132132

Contact Information

Lucinda Vandervort (Contact Author)
University of Saskatchewan ( email )
Saskatoon, SK S7N 5A6
Canada
(306) 966-5889 (Phone)
(306) 966-5900 (Fax)
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